A less discussed feature of the Mr. Trump’s much discussed travel ban from January 27, 2017 (See full text here) [1] imposes a temporary (120 day) ban on the US Refugee Admissions Program [USRAP]. The suspension can be found in section 5 of that order. Section 5, subsection B contains the following language:

Upon the resumption of USRAP [US Refugee Admissions Program] admissions, the Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, to the extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality [emphasis added by GC]. Where necessary and appropriate, the Secretaries of State and Homeland Security shall recommend legislation to the President that would assist with such prioritization.

Subsection E has this language,

Notwithstanding the temporary suspension imposed pursuant to subsection (a) of this section, the Secretaries of State and Homeland Security may jointly determine to admit individuals to the United States as refugees on a case-by-case basis, in their discretion, but only so long as they determine that the admission of such individuals as refugees is in the national interest — including when the person is a religious minority in his country of nationality facing religious persecution [emphasis added by GC], when admitting the person would enable the United States to conform its conduct to a preexisting international agreement, or when the person is already in transit and denying admission would cause undue hardship — and it would not pose a risk to the security or welfare of the United States.

These clauses seem to prioritize admitting Christian refugees in preference to Muslim refugees. As far as I know, the refugees the US is most likely to receive right now come from Muslim-majority countries. That fact (if it is a fact) suggests Christian refugees have one more tool to draw on than Muslims do when claiming asylum. These clauses also reinforce Mr. Trump’s statement elsewhere, on the Christian Broadcasting Network that he intends to prioritize Christians over others when it comes to admitting refugees [2].

On balance I think this preference is probably a bad thing. But it’s a closer call than I believed at first.

Is this constitutional?

That question is more for the lawyers in the audience, although my lack of legal training won’t prevent me from answering. There’s a lot I’d need to know, that I don’t know, to answer that question. The practical function of these religious exemptions would be to prioritize Christian refugees over Muslim ones. Whatever one thinks of such prioritization as policy, I don’t think it’s a slam dunk to say that it’s unconstitutional. Here, by “unconstitutional” I mean a federal court will strike it down.

My layperson’s understanding is that the federal judiciary grants wide latitude to the executive and to Congress in determining who gets let into the country. My layperson’s understanding might be incorrect. But I can imagine a non-specious argument to support the above-referenced clauses from the EOse in court. That argument would run like this:

Religious persecution is a legitimate reason to grant asylum.

Religious persecution must be defined somehow.

Limiting “religious persecution” to minority religions is a commonsense way to make that definition, inasmuch that a member of a majority religion is unlikely to be persecuted because he or she is a member of that religion.

The language of this exemption would enable members of other religions, including Muslims, to request asylum for religious reasons presuming they are fleeing states in which Islam is a minority religion.

If it so happens that the “he religion of the individual is a minority religion in the individual’s country of nationality” language has been a standard test used by past administrations (and I don’t know if it is), then one can advance a point number 5 to the argument above that the EO is only following precedent.

Even if such language is standard practice and even if courts have generally deferred to the “political branches” on such matters, standard practice and deference can change. But I do think that speaking strictly in legal terms, it’s not at all clear to me that this portion of the EO is unconstitutional.

More things I don’t know

In a discussion Over There on this matter, I was notified of a few things I didn’t even realize I didn’t know. I had trouble finding the exact comment, but someone suggested that “refugee status” ans “asylum status” are different things. I didn’t know that.

In another thread, or subthread, some people argued that I misconceived of how asylum/refugee status gets assigned and suggested that pre-Trump, the standard practice and statutory/treaty obligations were to grant asylum for religious persecution because people are targeted for their religion, regardless of whether theirs is a minority religion. Those comments–right or wrong, probably neither wholly one or the other–are further reminders that I’m not an expert in the legalities or the history of the matter.

But it’s a bad idea anyway

While I’m not prepared to say those portions of the EO are unconstitutional (again, using my constricted definition of “unconstitutional” as “something a federal court will likely strike down”), I’m prepared to say those exemptions are bad ideas.

My first concern is practical. As some said in the above-mentioned Ordinary Times subthread, the “religious minority” standard seems to assign to immigration officials the duty to define what is and isn’t a minority religion. How much does a religious practice have to differ from that of the majority to constitute a new religion? Can someone who practices a non-standard form of Islam (say, e.g., Wahabbism) claim religious asylum because it’s a “minority religion”? Is there some sort of creed people have to profess? Do they have to know how to say “shibboleth” [probably safe for work, but it is a Youtube video]?

My other concern builds on the practicalities. Does this impose in practice a religious test? To me, a religious test for obtaining asylum strikes me as wrong. If we generally accept applications for asylum for religious persecution, perhaps those who apply ought to demonstrate they face persecution for their religion, but ought not to have to demonstrate they profess a certain religion as a precondition.

But still I hedge my bets

In the original draft of this post, I contemplated saying the “Christian preference” clauses appeal to Christians who believe the Golden Rule comes with an asterisk:

Do unto others* as you would have others do unto you.

*….unless those others aren’t Christian, then do whatever the hell you want.

But two concerns suggest my inclination to oppose those clauses of the EO is not quite as defensible as I thought.

First, my “ought’s” here conflict with each other. What if a non-Christian is persecuted because they are believed to be Christian? Ought that person be able to claim religious asylum even though they’re not persecuted for “their” religion?

Second, what if a religious group or ethno-religious group faces persecution directed specifically at it? In that case, it doesn’t strike me as beyond the pale bad for the US to adopt a policy to help members of that group and it doesn’t strike me as beyond the pale bad to define that policy in such a way as to make it easier for them to claim asylum.

….I have no problem with prioritizing Christian refugees, if that is the intent [of the clauses I mentioned above, which I had introduced into discussion there–GC]. Christians are subject to horrible persecution in the countries named under the order, as a result of the jihadist wars instigated by the United States and Saudi Arabia. They are persecuted even in the refugee camps, which is why they are under-represented among refugees admitted to the United States. They are 10 percent of the population of Syria, for example, but only a tiny number of the Syrian refugees admitted to the United States.

While I don’t read Ebersole’s blog much, it’s worth looking at and I think if you do, you’ll agree with me that Ebersole is no fanatic, right-wing or otherwise. Combine that with the fact that I’m just mostly ignorant of the situation in Syria or most of what goes on in West Asia. Yeah, I know there’s a civil war, and I know that ISIS exists, and I know probably enough facts to earn me at least a B- on the final exam for a current affairs 101 class. But that’s about it. If Ebersole is right, then perhaps that preference should somehow be policy. And because Congress dithers, maybe it is appropriate for the president to use what authority he has to expedite the policy.

What to oppose and why….that’s an important question

I fall back on my criticisms against the religious exemption” clauses of the EO as bad policy. If things are as bad as Ebersole describes, Mr. Trump could do better than restrict most refugees but make special exemption that in practice seems designed to favor Christians. Why not a blanket religious exemption? Of course, I’m pro-admitting more refugees than the US has already and have no particular objection to them being Muslim or Christian. So my priors are very different from Mr. Trump’s.

I also fall back on what’s unstated in the EO but stated at such events as that reported on the Christian Broadcasting Network. Whatever effect the EO may have in practice, and whatever policy I might theoretically support would be consistent with the EO, the spirit animating it seems to be malicious in a way that similar policies implemented by Mr. Obama would not seem to me to be. I’m not sure citing that “spirit of malice” would or should be a viable strategy to contest the EO in court, but it is, in my opinion, to be opposed.

If I or we are going to criticize what Mr. Trump does, we need to focus on the particulars and why. Do we oppose the EO because it’s unconstitutional, or is it unconstitutional because we oppose it? Do we oppose the EO because it seems to carve out a specific religious exemption, or do we oppose it because the exempted profess Christianity? Do we oppose it because it’s bad policy, or because it’s Mr. Trump’s policy? Maybe these contrasts aren’t as stark and “rhetorical” as they probably sound. Maybe Mr. Trump is so bad that even on-balance good (but still questionable) policies ought to be opposed.

In the meantime, of course, I realize that other people’s lives and livelihoods are affected much more immediately than mine are. I’m in the cheap seats and am able to write these notes from my computer without really having to face (at least for now, knock on wood) the reality of what the US chooses to do.

About the Author

Gabriel Conroy (conroy, fka Pierre Corneille and corneille1640) is an ex-graduate student. Now he writes blogs! He has a solo blog--Ye Olde Republicke. The views expressed by Gabriel (or Pierre, or corneille1640) are his alone and do not necessarily reflect those of his spouse, employer, or his co-bloggers at Hitcoffee.

My reading of the EO is that other forms of persecution aren’t prioritized, although it does mention (but doesn’t prioritize) a general statement of policy about not admitting people guilty of “honor killings” and violence against women.

Therefore, that seems to substantiate your point that “religion” is prioritized over racial or ethnic persecution, except in the sense that religious persecution is often (usually?) ethnically tinged, either because the practitioners of the disfavored religion belong to a different ethnicity, or are treated for most intents and purposes as belonging to a different ethnicity.

Prevailing theory assumes that people enforce norms in order to pressure others to act in ways that they approve. Yet there are numerous examples of “unpopular norms” in which people compel each other to do things that they privately disapprove. While peer sanctioning suggests a ready explanation for why people conform to unpopular norms, it is harder to understand why they would enforce a norm they privately oppose. The authors argue that people enforce unpopular norms to show that they have complied out of genuine conviction and not because of social pressure. They use laboratory experiments to demonstrate this “false enforcement” in the context of a wine tasting and an academic text evaluation. Both studies find that participants who conformed to a norm due to social pressure then falsely enforced the norm by publicly criticizing a lone deviant. A third study shows that enforcement of a norm effectively signals the enforcer’s genuine support for the norm. These results
demonstrate the potential for a vicious cycle in which perceived pressures to conform to and falsely enforce an unpopular norm re-inforce one another.

Several recent studies have investigated the consequences of racial intermarriage for marital stability. None of these studies properly control for first-order racial differences in divorce risk, therefore failing to appropriately identify the effect of intermarriage. Our article builds on an earlier generation of studies to develop a model that appropriately identifies the consequences of crossing racial boundaries in matrimony. We analyze the 1995 and 2002 National Survey of Family Growth using a parametr

If there is one thing in that statement which I would take issue with, it is Mallon’s overly optimistic belief that the new policy is “well-meaning”.

That’s because anyone who has spent any time in an Irish hospital over the last few years will have seen the smoking ban enforced in draconian and nasty ways which are simply punitive and judgmental.

Even those who have been fortunate enough to stay away from hospitals in that time can see the results of such bans.

Drive by the Mater on any rainy day, for instance, and you will see patients huddled together in their dressing gowns, exposed to the elements as they take a break from the drudgery of hospital life. This, apparently, is healthier than allowing the patients an enclosed area – which they used to have – where they could smoke without bothering anyone else and, perhaps, not get soaked to the bone at the same time.

People smoke in hospitals for a variety of reasons, and one which is never considered by the authorities is that it is actually good for their head.

Certainly, when my father spent a few years in and out of James’s hospital with the terminal, non-smoking related disease which would ultimately kill him, he measured the days by increments of when he’d go out for a smoke. It broke the endless monotony of living on a ward and, like many other long-term patients, he was determined to not become a ‘lifer’, one of those lost, institutionalised souls who simply lie in bed all day staring at the ceiling.

One might be forgiven for believing that this is more about sin and repentance than concern for the welfare of the sinners.

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Greetings from Stonebridge a fictitious city in a fictitious state located in a tri-state area in the interior Mid-Atlantic region. We're in western Queenland, which is really a state unto itself, and not to be confused with Queensland in Australia.

Nothing written on this site should be taken as strictly true, though if the author were making it all up rest assured the main character and his life would be a lot less unremarkable.